The Digital Economy Act - a powerful tool for Copyright Owners?

In 2010, the Digital Economy Act (the "Act"), which aims to safeguard the creative industries and provide further protection to copyright owners, came into force.

May 2011

When these provisions come into force, they could provide powerful tools which will make it easier for copyright owners to pursue those who infringe their copyright online.

At present, copyright owners can apply for injunctive relief and damages against infringers under the Copyright, Designs and Patents Act 1988. They may also apply for injunctive relief against Internet Service Providers ("ISPs") where the ISP has actual knowledge of the infringement (which is why it pays to promptly put ISPs on notice of copyright infringements). However, copyright owners often run into difficulties in relation to peer-to-peer file sharing, as peer-to-peer websites facilitate the sharing of infringing material rather than actually hosting it.

Under the Act, a copyright owner will be able to notify an ISP of any IP addresses which are associated with online infringements (e.g. the copying of copyright works such as films and music) that they become aware of. The copyright owner's "copyright infringement report" must provide a description of the alleged infringement including evidence and the IP address details which identify the relevant subscriber.

The Act imposes an obligation on ISPs to (a) maintain a list of copyright infringement reports; and (b) notify alleged infringers of the reports concerning them and that a claim may be brought against them. Copyright owners will also be able to request a "copyright infringement list" from the ISP, which will contain an anonymous list of all subscribers who have reached a threshold (due to be fixed by Ofcom in its Initial Obligations Code) of copyright infringement reports. The copyright owners can then make an application to the Court for an Order (a Norwich Pharmacal Order) which compels the ISP to identify some or all of the subscribers on the list (in practice, ISPs rarely challenge such applications) and then launch infringement proceedings against them.

In addition, the Act contemplates further more serious sanctions, such as requiring ISPs to impose technical measures to restrict subscribers' access to the internet by suspending service or limiting access speeds. Although, these will require Parliamentary approval and cannot be enacted until Ofcom's Initial Obligations Code has been in force for at least 12 months. These sanctions form part of the most controversial aspects of the Act and have been heavily criticised by consumer rights groups.

It is clear that the Act will provide further methods of attack against online copyright infringers. However, the cost of obtaining a vast number of Norwich Pharmacal Orders (which can cost several thousand pounds each in legal fees) may make enforcement action against infringers too costly to pursue on a large-scale basis except, perhaps, for the biggest rights-holders. Copyright owners may, however, use the new procedures on a smaller scale to make examples of the more prolific infringers. In addition, the obligation on ISPs to put infringing subscribers on notice that they may be prosecuted if they continue to infringe copyright works may be an effective remedy against subscribers who are infringing on a smaller-scale (e.g. individuals downloading the odd film or album) and is not something that would be feasible with the traditional enforcement route.

It seems likely, however, that the traditional route will remain preferable where a website repeatedly ignores requests to remove content or block a specific infringing user. This is because the threat of requesting an infringement list from an ISP is unlikely to have as much of an impact as threatening court proceedings and an injunction, which can be very costly for all involved.